Orientation, Not Curriculum: The Oklahoma Supreme Court Narrows HB 1775’s Reach and Limits the Use of Certified Questions

Orientation, Not Curriculum: The Oklahoma Supreme Court Narrows HB 1775’s Reach and Limits the Use of Certified Questions

I. Introduction

In Black Emergency Response Team v. Drummond, Walters, 2025 OK 44, the Oklahoma Supreme Court addressed certified questions from the United States District Court for the Western District of Oklahoma concerning House Bill 1775, codified at 70 O.S.2021 § 24‑157. HB 1775 is part of a wave of state statutes restricting certain “diversity,” “anti-racism,” or “critical race theory”–adjacent teachings and trainings in public educational institutions.

The plaintiffs include civil rights organizations, faculty groups, and parents:

  • Black Emergency Response Team
  • University of Oklahoma Chapter of the American Association of University Professors
  • Oklahoma State Conference of the NAACP
  • American Indian Movement Indian Territory
  • Individual plaintiffs (including a parent suing as next friend of a minor)

They sued various state officials and governing boards, alleging that HB 1775 violates the First and Fourteenth Amendments to the U.S. Constitution by being vague, overbroad, and viewpoint-discriminatory, and by infringing academic freedom and students’ right to receive information.

The federal district court granted partial preliminary relief and, faced with significant questions of state statutory meaning, certified several questions of Oklahoma law. The Oklahoma Supreme Court:

  1. Answered only the first three certified questions concerning 70 O.S. § 24‑157(A)(1), and
  2. Declined to answer the remaining three questions concerning 70 O.S. § 24‑157(B)(1).

The headline holding is narrow but important: the Court construed the word “requirement” in § 24‑157(A)(1) to apply only to orientation-like obligations (alongside “training” and “counseling”) in higher education, not to classes, courses, or curricular speech. That interpretation effectively removes university classroom instruction and academic research from the reach of § 24‑157(A)(1), and it allowed the Court to avoid deciding a significant Oklahoma constitutional question about the Legislature’s power to control university curriculum.

II. Summary of the Opinion

The Western District of Oklahoma certified six questions. The Oklahoma Supreme Court grouped them into two clusters:

  1. Questions 1–3: Interpretation and constitutionality of § 24‑157(A)(1), which applies to higher education and prohibits mandatory gender or sexual diversity “training,” “counseling,” and any “orientation or requirement” that “presents any form of race or sex stereotyping or a bias on the basis of race or sex.”
  2. Questions 4–6: Interpretation of key phrases in § 24‑157(B)(1), which applies to K–12 public and charter schools and forbids teachers from “requir[ing] or mak[ing] part of a course” certain listed “concepts” (for example, that individuals should be discriminated against based on race or sex).

The Court held:

  • On § 24‑157(A)(1) (higher education):
    • The term “requirement” in the phrase “any orientation or requirement” pertains only to orientation-type requirements and does not extend to classes, courses, or curricular speech.
    • Given the federal district court’s prior standing analysis (which found no standing to challenge the first sentence of § 24‑157(A)(1) because it concerned only training and counseling), this construction means the plaintiffs likewise lack standing to challenge the second sentence of § 24‑157(A)(1).
    • Because of that, the Court saw no reason to address the broader constitutional issue (whether § 24‑157(A)(1) violates Okla. Const. art. 8, § 8 by invading university governance) or to answer further questions about “present[ing]” race/sex stereotyping.
  • On § 24‑157(B)(1) (K–12 “prohibited concepts”):
    • The Court declined to answer the certified questions about the meaning of “require” and “make part of a course” in subsection (B)(1), and about the meaning of specific listed concepts in (B)(1)(c) and (d).
    • It exercised its discretionary authority under Oklahoma’s certification statute, concluding that answering those questions would not avoid or materially alter the underlying federal constitutional vagueness and due process issues, and that federal courts are fully capable of applying ordinary dictionary definitions to those terms.

Justice Kane concurred in part and dissented in part, stating he would have answered all certified questions. Vice Chief Justice Kuehn also concurred in part and dissented in part by separate writing (not reproduced in the excerpt). The majority opinion is authored by Justice Winchester.

III. Factual and Procedural Background

A. HB 1775 and 70 O.S. § 24‑157

HB 1775, codified as 70 O.S. § 24‑157, has two main components, reflected in its title:

“Prohibition of Mandatory Gender or Sexual Diversity Training or Counseling — Prohibited Course Concepts.”

The Court describes the statute as:

  • Higher education component – § 24‑157(A)(1):
    • First sentence: “No enrolled student of an institution of higher education within The Oklahoma State System of Higher Education shall be required to engage in any form of mandatory gender or sexual diversity training or counseling; provided, voluntary counseling shall not be prohibited.”
    • Second sentence: “Any orientation or requirement that presents any form of race or sex stereotyping or a bias on the basis of race or sex shall be prohibited.”
  • K–12 component – § 24‑157(B)(1):
    • Applies to “teacher[s], administrator[s] or other employee[s] of a school district, charter school or virtual charter school.”
    • They may not “require or make part of a course” eight enumerated concepts, including:
      • Inherent racial or sexual superiority ((B)(1)(a));
      • Inherent racism/sexism/oppressiveness by virtue of race or sex ((B)(1)(b));
      • That individuals “should be discriminated against or receive adverse treatment” because of race or sex ((B)(1)(c));
      • That members of a race or sex “cannot and should not attempt to treat others without respect to race or sex” ((B)(1)(d));
      • And several other related propositions about moral character, responsibility for past acts, guilt or anguish, and meritocracy.
    • The subsection expressly states it “shall not prohibit the teaching of concepts that align to the Oklahoma Academic Standards.”

The statute directs:

  • The Oklahoma State Regents for Higher Education to promulgate rules implementing § 24‑157(A) (which, the Court notes, “has not been completed”).
  • The Oklahoma State Board of Education to promulgate rules implementing § 24‑157(B); that has occurred (O.A.C. § 210:10‑1‑23).

B. The Federal Litigation and Preliminary Rulings

Plaintiffs filed suit in the Western District of Oklahoma seeking declaratory and injunctive relief, alleging HB 1775 is:

  • Facially and as-applied unconstitutional under the First and Fourteenth Amendments;
  • Unconstitutionally vague and overbroad;
  • A viewpoint-based restriction on speech; and
  • A violation of students’ right to receive information.

The defendants include:

  • The Governor and Attorney General of Oklahoma;
  • The State Superintendent of Public Instruction;
  • Members of the State Board of Education;
  • The Oklahoma State Regents for Higher Education; and
  • The Board of Regents of the University of Oklahoma.

On June 14, 2024, the Western District:

  • Held plaintiffs lacked standing to challenge the first sentence of § 24‑157(A)(1) (the prohibition on mandatory gender or sexual diversity training or counseling), reasoning that the challenged training did not restrict what instructors could teach.
  • Enjoined enforcement—as unconstitutionally vague under the Fourteenth Amendment—of:
    • The second sentence of § 24‑157(A)(1) (“Any orientation or requirement that presents any form of race or sex stereotyping or a bias on the basis of race or sex shall be prohibited”);
    • The word “require” in the introductory clause of § 24‑157(B)(1); and
    • The entirety of § 24‑157(B)(1)(c) and (d).
  • Certified questions of Oklahoma law to the Oklahoma Supreme Court on these provisions.

An appeal of the preliminary injunction to the Tenth Circuit has been stayed pending resolution of the certified questions.

IV. Detailed Analysis

A. Precedents and Canons of Construction Used by the Court

In interpreting § 24‑157, the Oklahoma Supreme Court relies heavily on well-established principles of statutory construction, supported by state and federal precedents. The key points are:

  • Legislative intent and plain meaning:
    • In re Protest of Raytheon Co. and Subsidiaries, 2022 OK 32, ¶ 9, 512 P.3d 333, 337: the Court’s primary goal is to ascertain and follow the Legislature’s intent.
    • State ex rel. Dep’t of Pub. Safety v. 1985 GMC Pickup, 1995 OK 75, ¶ 7, 898 P.2d 1280, 1282: statutes should be given a reasonable, sensible construction, avoiding absurd consequences.
    • Fanning v. Brown, 2004 OK 7, ¶ 10, 85 P.3d 841, 845–46; Lang v. Erlanger Tubular Corp., 2009 OK 17, ¶ 8, 206 P.3d 589, 591: words are construed according to their plain and ordinary meaning unless the Legislature clearly intended otherwise; no resort to interpretive rules if the language is unambiguous.
  • Reading words in context:
    • McIntosh v. Watkins, 2019 OK 6, ¶ 4, 441 P.3d 1094, 1096: provisions must be interpreted in context, considering all surrounding language.
    • Applied here, the Court reads “requirement” in § 24‑157(A)(1) alongside “training,” “counseling,” and “orientation,” rather than in isolation.
  • Use of statutory titles:
    • Fent v. Fallon, 2014 OK 105, ¶ 8, 345 P.3d 1113, 1116: a statute’s title may shed light on legislative intent.
    • The title “Prohibition of Mandatory Gender or Sexual Diversity Training or Counseling — Prohibited Course Concepts” supports the Court’s bifurcation of the statute into:
      • Higher-education training/counseling/orientation provisions; and
      • K–12 prohibited course concepts provisions.
  • Use of dictionary definitions for ordinary meaning:
    • U.S. Fid. & Guar. Co. v. Briscoe, 1951 OK 386, ¶ 10, 239 P.2d 754, 757: dictionary definitions may be used to capture the common, ordinary usage of terms.
    • The Court notes that the federal district court has already used Black’s Law Dictionary to broadly define “requirement” (e.g., as something a university sets as a necessary qualification), but the Oklahoma Supreme Court constrains that definition based on statutory context.
  • Certification doctrine:
    • Oklahoma’s Revised Uniform Certification of Questions of Law Act, 20 O.S.2021 §§ 1601–1611, authorizes but does not compel the Court to answer questions certified by federal courts.
    • Siloam Springs Hotel, LLC v. Century Sur. Co., 2017 OK 14, ¶ 14, 392 P.3d 262, 266: when deciding whether to answer a certified question, the Court looks to whether its answer would:
      • Be dispositive of an issue in the federal case; and
      • Address an area lacking established, controlling state law.
    • The Court cites several prior cases where it declined to answer certified questions, including:
      • Anaya‑Smith v. Federated Mut. Ins. Co., 2024 OK 34, 549 P.3d 1213;
      • Ball v. Wilshire Ins. Co., 2007 OK 80, 184 P.3d 463;
      • Scottsdale Ins. Co. v. Tolliver, 2005 OK 93, 127 P.3d 611;
      • Hammock v. United States, 2003 OK 77, 78 P.3d 93;
      • Bituminous Cas. Corp. v. Cowen Constr., Inc., 2002 OK 34, 55 P.3d 1030;
      • Cray v. Deloitte Haskins & Sells, 1996 OK 102, 925 P.2d 60.
    • From the federal side, the Court relies on:
      • Pino v. United States, 507 F.3d 1233 (10th Cir. 2007): certification is most useful when a state-law interpretation might avoid or substantially modify a federal constitutional question.
      • Kansas Judicial Review v. Stout, 519 F.3d 1107 (10th Cir. 2008): cautioning against using certification where only an abstract construction is sought that does not resolve the underlying federal controversy.
      • American Fid. Bank & Trust Co. v. Heimann, 683 F.2d 999, 1002 (6th Cir. 1982); Copier ex rel. Lindsey v. Smith & Wesson Corp., 138 F.3d 833, 838 (10th Cir. 1998): federal courts have a duty, and are fully competent, to interpret state statutes in the first instance when necessary.
      • Imel v. United States, 523 F.2d 853, 857 (10th Cir. 1975): a federal court may not offload its responsibility to decide federal constitutional issues onto a state court via certification.
      • Jackson v. Virginia, 443 U.S. 307 (1979): state court determinations of federal constitutional questions do not bind federal courts reviewing federal rights.

B. Legal Reasoning: Narrowing § 24‑157(A)(1) to Orientation-Only

1. The core interpretive question

The first three certified questions all hinged on a threshold issue: does § 24‑157(A)(1) govern curriculum (classes, courses, and academic speech), or is it confined to non‑curricular activities such as orientations and trainings?

The Western District’s first certified question explicitly framed the central state constitutional issue as whether § 24‑157(A)(1) violates Okla. Const. art. 8, § 8—that is, whether the Oklahoma Legislature has the power to regulate the affairs of the University of Oklahoma and other institutions “to the extent done” in § 24‑157(A)(1). That constitutional concern only becomes acute if § 24‑157(A)(1) reaches into classroom curriculum and academic research, areas traditionally governed by boards of regents.

The Oklahoma Supreme Court, however, deliberately stops short of that constitutional issue by answering a narrower statutory question first: what does “requirement” in the second sentence of § 24‑157(A)(1) mean, in context?

2. Competing views of “requirement”

The parties offered contrasting interpretations:

  • Plaintiffs’ position: “Requirement” encompasses:
    • Required classes;
    • Courses generally; and
    • Other mandatory prerequisites for graduation or academic programs.
    They relied on Black’s Law Dictionary, which defines “requirement” as something “an employer, university, etc. sets as a necessary qualification.” On that view, § 24‑157(A)(1) would directly regulate curricular content and academic speech.
  • Defendants’ position (State and University): “Requirement” in § 24‑157(A)(1) is not a free‑floating reference to any condition imposed by a university, but is tied contextually to “orientation” (and by extension to “training” and “counseling”). It therefore covers:
    • Mandatory orientations;
    • Similar non‑credit institutional sessions;
    • Other orientation‑like obligations outside the credit‑bearing curriculum.

The Court adopts the defendants’ narrower reading.

3. Contextual reading within subsection (A)(1)

The Court emphasizes that the second sentence (“Any orientation or requirement …”) must be read “in conjunction with” the first sentence. The first sentence clearly targets “mandatory gender or sexual diversity training or counseling.” The second sentence then adds a prohibition on any “orientation or requirement” presenting race or sex stereotyping or bias.

Notably, the Legislature chose specific words in subsection (A)(1):

  • “training”
  • “counseling”
  • “orientation”
  • “requirement” (paired with “orientation”)

By contrast, the Legislature used very different terms in subsection (B)(1), which applies to K–12:

  • “teacher”
  • “course”
  • “make part of a course”

For the Court, this contrast is decisive. When the Legislature intended to regulate classroom instruction and “course” content, it knew how to say so explicitly, as it did in (B)(1). The absence of any reference to “teacher” or “course” in (A)(1), alongside the express use of “training,” “counseling,” and “orientation,” indicates that subsection (A)(1) is concerned with non‑curricular programming rather than academic coursework.

4. The role of the statute’s title

The Court then turns to the statute’s title: “Prohibition of Mandatory Gender or Sexual Diversity Training or Counseling — Prohibited Course Concepts.” The structure of that title supports a bifurcated understanding:

  • The first clause (“Prohibition of Mandatory Gender or Sexual Diversity Training or Counseling”) corresponds to the higher‑education provisions in subsection (A), which are centered around mandatory trainings, counseling, and orientations.
  • The second clause (“Prohibited Course Concepts”) corresponds to the K–12 provisions in subsection (B), which regulate what concepts may be required or made part of a “course.”

The Court reasons that, because the “prohibited course concepts” are expressly limited to K–12 institutions in (B)(1), the remaining part of the Act—concerning higher education—must be confined to training, counseling, and orientation rather than actual course content. The title thus reinforces the contextual reading of “requirement” as tethered to non‑curricular orientation‑type activities.

5. Conclusion on “requirement” and its consequences

Synthesizing text, context, and the title, the Court holds:

“[T]he term ‘requirement’ in § 24‑157(A)(1) pertains only to orientation requirements and does not apply to classes, courses, or curricular speech.”

This has two major consequences:

  1. Scope of the statute: § 24‑157(A)(1) does not regulate what professors teach in their courses, what topics are addressed in seminars, or what content appears in formal degree‑bearing coursework. It regulates mandatory orientation‑type events and similar non‑credit, institutional requirements imposed on enrolled students.
  2. Standing in the federal case: The Western District had already held that plaintiffs lacked standing to challenge the first sentence of § 24‑157(A)(1) because it dealt only with mandatory training and counseling, which did not constrain their curricular speech. Once the Oklahoma Supreme Court construes the second sentence of § 24‑157(A)(1) in the same way, all of subsection (A)(1) is confined to training, counseling, and orientation—matters as to which the federal court has already found no cognizable injury. As the Oklahoma Supreme Court observes, “Plaintiffs would not have standing to challenge the entirety of § 24‑157(A)(1).”

Because plaintiffs lack standing under the Western District’s own reasoning, the Oklahoma Supreme Court concludes there is “no reason to answer the remaining certified questions relating to § 24‑157(A)(1).” In practical terms, this means the Court avoids:

  • Answering whether the Legislature violated Okla. Const. art. 8, § 8 (a provision relating to the governance of the University of Oklahoma and other institutions) by regulating curriculum; and
  • Defining what it means to “present[]” race or sex stereotyping or bias under § 24‑157(A)(1).

C. Refusal to Answer Certified Questions on § 24‑157(B)(1)

1. Certification is discretionary and limited

Turning to Questions 4–6, the Court underscores that its power to answer certified questions under 20 O.S. §§ 1601–1611 is discretionary, not mandatory. The statute contemplates certification where:

  1. An answer would be dispositive of an issue in the pending federal litigation; and
  2. There is no established, controlling Oklahoma precedent on the question.

Here, the Court emphasizes a further, implicit limitation recognized in decisions like Pino and Kansas Judicial Review: certification is particularly appropriate when a state‑law interpretation could reasonably avoid, or at least narrow, an underlying federal constitutional dispute. What it should not be used for is to ask a state court to resolve the federal constitutional issue indirectly or to give abstract interpretations divorced from concrete application.

2. The nature of the remaining questions

The certified questions under § 24‑157(B)(1) asked the Court to define:

  • What it means to “require” certain concepts;
  • What it means to “make part of a course” certain concepts; and
  • Specifically, what it means to make part of a course the concept that:
    • “an individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex” (§ 24‑157(B)(1)(c)); and
    • “members of one race or sex cannot and should not attempt to treat others without respect to race or sex” (§ 24‑157(B)(1)(d)).

Plaintiffs argued to the Oklahoma Supreme Court that the K–12 provisions are unconstitutionally vague and “not susceptible to a limiting construction.” The State Defendants responded that the ordinary meanings of the words are clear and that any ambiguities could be resolved by resort to common usage and dictionary definitions.

3. Why the Court declined to answer

The Court agrees that certification is inappropriate here, though “for reasons not raised by Plaintiffs.” Its reasoning has several strands:

  • These are essentially federal constitutional questions in disguise.
    • The Western District is evaluating whether the statute is unconstitutionally vague under the Fourteenth Amendment’s Due Process Clause.
    • Asking the state court to define “require” or “make part of a course” in the abstract is, in context, an effort to determine whether the statute has sufficiently clear boundaries to satisfy federal due process—something the federal court must ultimately decide.
    • Per Imel, a federal court cannot impose on a state court the duty to decide federal constitutional questions, and per Jackson v. Virginia, state resolution of federal constitutional issues is not binding on federal courts. Any answer the Oklahoma Supreme Court might provide would risk being an advisory opinion, which the Court avoids (citing Ball v. Wilshire Ins. Co.).
  • The key issue is not choosing between competing definitions but whether the terms are definable at all in context.
    • The Court observes that “any term or phrase can be interpreted using its common, ordinary usage” via dictionary definitions.
    • The real controversy is not what “require” or “discriminate” means in the abstract, but whether, in a given classroom and grade level, particular teaching practices amount to “requiring” or “making part of a course” prohibited concepts.
    • Such questions are inevitably fact‑specific. For example, what counts as “requiring” something from a first‑grader may differ sharply from doing so in high school.
    • Thus, the Court concludes it cannot “reasonably define these terms or phrases in the abstract to avoid or alter the constitutional challenge to the statute.”
  • Federal courts can and should interpret basic statutory language.
    • The Court notes that the Western District has already proposed definitions:
      • Reading “requirement” broadly in § 24‑157(A)(1);
      • Interpreting “make part of a course” as “directly endorsing, promoting, or inculcating any concept as a normative value.”
    • Given this, and following cases like Heimann and Copier, the Court reiterates that federal courts have both the authority and the duty to interpret state statutes using standard tools of construction. Certification is not a mechanism for offloading that responsibility when the interpretive task is merely to apply ordinary meaning to statutory text.
  • Uncertain effect of federal Executive Order 14,190.
    • Finally, the Court notes that President Trump’s Executive Order 14,190 (2025), “Ending Radical Indoctrination in K‑12 Schooling,” might “impact or moot the federal questions presented by Plaintiffs.”
    • Given that uncertain landscape, the Court sees further reason to refrain from issuing state‑law pronouncements that might soon be overtaken by federal executive or regulatory developments.

For all of these reasons, the Court declines to answer Questions 4–6 concerning § 24‑157(B)(1).

D. The Concurring/Dissenting View

Justice Kane states succinctly in his separate opinion: “I would answer all of the Federal Questions presented in this case.” Although his full reasoning is not reproduced here, his position suggests:

  • A more expansive view of the Court’s role in assisting federal courts through the certification process; and
  • Possibly a willingness to give the statute a more detailed, perhaps narrowing, construction that might have clarified or limited its reach in classrooms.

Vice Chief Justice Kuehn also concurs in part and dissents in part by separate writing, indicating further internal disagreement about how far the Court should go in addressing the certified questions.

V. Simplifying the Key Legal Concepts

A. Certified Questions of Law

A “certified question” is a formal request from a federal court (or another state’s highest court) asking the state’s highest court to interpret an unsettled point of that state’s law. The goals are:

  • To get an authoritative interpretation of state law; and
  • Sometimes, to avoid having to decide a serious federal constitutional question if state law can be interpreted in a way that resolves the case.

In Oklahoma, the process is governed by the Revised Uniform Certification of Questions of Law Act, 20 O.S. §§ 1601–1611. The Oklahoma Supreme Court is not required to answer; it decides case-by-case, looking at the usefulness of its answer to the federal litigation and the presence or absence of existing Oklahoma authority.

B. Standing

“Standing” is a requirement that a plaintiff must have a concrete, personal stake in the dispute. It is not enough to dislike a law or to be generally affected as a citizen; the plaintiff must show:

  • An actual or imminent injury (not purely hypothetical);
  • That is fairly traceable to the defendant’s action; and
  • That can likely be redressed by a court ruling.

The Western District concluded plaintiffs had no standing to challenge the first sentence of § 24‑157(A)(1) because it did not restrict their teaching. By interpreting the second sentence in the same way (as applying only to non‑curricular orientation‑type activities), the Oklahoma Supreme Court effectively confirms that plaintiffs lack standing to challenge any portion of § 24‑157(A)(1) in that case.

C. Vagueness and Due Process

A law is “unconstitutionally vague” under the Due Process Clause if:

  • People of ordinary intelligence cannot reasonably understand what it prohibits or requires; or
  • It is so open‑ended that it invites arbitrary or discriminatory enforcement.

In the federal case, plaintiffs argue that § 24‑157(B)(1)’s prohibitions—particularly concerning what it means to “require” or “make part of a course” certain concepts—are too vague. The Oklahoma Supreme Court declines to decide that question, emphasizing that it is a federal constitutional issue that the federal court must resolve.

D. Avoidance of Constitutional Questions

Both state and federal courts follow a longstanding practice: if a case can be decided on a non‑constitutional ground (such as statutory interpretation), courts prefer that route. This is sometimes called the “constitutional avoidance” doctrine.

Here, the Oklahoma Supreme Court:

  • Avoids deciding whether § 24‑157(A)(1) violates the Oklahoma Constitution’s allocation of authority over universities by interpreting “requirement” narrowly; and
  • Declines to engage with Fourteenth Amendment vagueness questions about § 24‑157(B)(1), leaving those constitutional issues for the federal court.

VI. Likely Impact on Future Cases and the Law

A. Impact on Oklahoma Higher Education

The Court’s construction of § 24‑157(A)(1) has immediate and concrete effects on Oklahoma’s universities:

  • Curriculum protected from HB 1775(A)(1):
    • Professors and universities remain free, under § 24‑157(A)(1), to design and offer courses that discuss race, sex, systemic discrimination, privilege, or related concepts.
    • The statute, as interpreted, does not bar academic departments from including such material in required courses or degree requirements.
  • Orientation and training programs are constrained:
    • Mandatory orientation sessions and non‑credit institutional requirements for enrolled students may not “present[] any form of race or sex stereotyping or a bias on the basis of race or sex.”
    • This could affect:
      • Diversity, equity, and inclusion (DEI) trainings that, for example, frame all members of a particular race as “privileged” or “oppressors” solely because of their race; or
      • Mandatory sessions that explicitly instruct students to adopt race‑ or sex‑based stereotypes as prescriptive norms.
    • Voluntary counseling remains permissible.
  • Academic freedom vs. governance questions postponed:
    • Because the Court interprets § 24‑157(A)(1) as not reaching curriculum, it avoids a potentially precedent‑setting confrontation over how far the Legislature can go in dictating academic content at state universities.
    • Questions about the constitutional autonomy of boards of regents under the Oklahoma Constitution (cited as Okla. Const. art. 8, § 8 in the opinion) remain unresolved and may resurface in future litigation if the Legislature enacts more direct curricular controls.

B. Impact on K–12 Education and “Prohibited Concepts” Laws

Because the Court declined to answer the K–12 questions, the interpretive landscape for § 24‑157(B)(1) remains open:

  • Federal courts retain primary interpretive control:
    • Federal courts in Oklahoma will continue to interpret phrases like “require” and “make part of a course” using ordinary tools (text, context, dictionaries) without authoritative state‑court gloss.
    • The preliminary injunction against parts of § 24‑157(B)(1) (including subparagraphs (c) and (d)) remains subject to appellate review in the Tenth Circuit, guided primarily by federal, not state, interpretations.
  • Unsettled guidance for teachers and school districts:
    • Absent state‑court clarification, K–12 educators and administrators must navigate the statute under a cloud of uncertainty, relying on:
      • District guidance;
      • Administrative rules (O.A.C. § 210:10‑1‑23); and
      • Ongoing federal litigation and appellate decisions.
    • The vagueness challenge, if upheld, could lead to parts of § 24‑157(B)(1) being struck down or significantly narrowed as a matter of federal constitutional law.
  • Interaction with Executive Order 14,190:
    • The Court’s reference to Executive Order 14,190 (“Ending Radical Indoctrination in K‑12 Schooling”) suggests that federal policy may soon overlay or interact with state-level “prohibited concepts” laws.
    • Depending on how the federal executive branch interprets and enforces existing federal statutes (like FERPA, PPRA, and Title IX), there could be:
      • Preemption questions;
      • New federal regulations affecting K–12 curricula and parental rights; or
      • Additional litigation about conflicts between federal directives and state statutes like HB 1775.

C. Impact on the Use of Certified Questions

This decision also sends important institutional signals about how and when the Oklahoma Supreme Court will entertain certified questions:

  • Certification is not a vehicle for abstract definitional exercises:
    • The Court makes clear that it will not engage in abstract dictionary‑style definitional work when:
      • The terms at issue are susceptible to ordinary interpretation by federal courts; and
      • Such definitions will not meaningfully narrow or avoid the underlying federal constitutional dispute.
  • Federalism and role separation:
    • The Court insists on a clear division of labor:
      • The Oklahoma Supreme Court authoritatively interprets Oklahoma law.
      • Federal courts independently decide federal constitutional questions, even when state law is intertwined.
    • It declines invitations that risk turning the state court into a quasi‑consultant on federal due process questions.
  • Future certification requests may face heightened scrutiny:
    • Federal district and appellate courts may need to be more precise in showing:
      • How a state‑law interpretation could be dispositive or significantly alter the federal case; and
      • Why the question cannot be resolved using standard interpretive tools without state‑court assistance.
    • Otherwise, Oklahoma’s high court is likely to decline certification, as it did with Questions 4–6 here.

D. Litigation Strategy Going Forward

For litigants challenging or defending statutes like HB 1775, several strategic points emerge:

  • Framing of state vs. federal issues:
    • Challengers should be prepared to litigate core vagueness, overbreadth, and viewpoint‑discrimination arguments directly in federal court, without expecting state high courts to supply narrowing definitions.
    • State constitutional challenges (such as university governance autonomy) may require more targeted factual records and plaintiffs who can show standing under the statute as interpreted.
  • Standing and factual development:
    • Where statutes regulate non‑curricular programming (like orientations), plaintiffs must demonstrate concrete harms specifically tied to those activities, not just to classroom content, to establish standing.
    • In K–12 settings, the fact‑specific nature of “requiring” or “making part of a course” suggests that as‑applied challenges, grounded in actual curricula, may be more potent than facial challenges based on hypotheticals.
  • Drafting of future statutes:
    • Legislators seeking to regulate educational content may take cues from § 24‑157(B)(1) and use explicit references to “teachers,” “courses,” and “making part of a course” rather than ambiguous terms like “requirement.”
    • Conversely, universities and school boards challenging such statutes may scrutinize any mismatch between statutory terminology and the Legislature’s asserted regulatory goals, arguing for narrow constructions based on context—just as the plaintiffs’ opponents did successfully with “requirement” in § 24‑157(A)(1).

VII. Conclusion

Black Emergency Response Team v. Drummond, Walters is a significant, though deliberately narrow, contribution to Oklahoma’s developing law on educational speech and “anti‑indoctrination” statutes.

On the one hand, the Court’s core holding—that the term “requirement” in § 24‑157(A)(1) pertains only to orientation‑type requirements, not to classes, courses, or curricular speech—substantially limits HB 1775’s reach in higher education. By confining § 24‑157(A)(1) to non‑curricular training and counseling, the Court preserves university classroom autonomy from this particular statutory provision and sidesteps a major confrontation over the Legislature’s authority to dictate academic content under the Oklahoma Constitution.

On the other hand, the Court’s refusal to answer the certified questions about § 24‑157(B)(1) leaves unresolved—and squarely in the hands of the federal courts—the key questions about how (and whether) Oklahoma’s K–12 “prohibited concepts” regime can be enforced consistent with the Fourteenth Amendment’s vagueness doctrine. The opinion thus reinforces a strong division of labor: Oklahoma’s high court will interpret state statutes where that will materially clarify state law or avoid unnecessary constitutional rulings, but it will not serve as an auxiliary tribunal for federal constitutional analysis.

Going forward, the decision will:

  • Constrain the application of HB 1775(A)(1) to orientation‑related programming in higher education;
  • Leave K–12 educators, policymakers, and litigants to navigate § 24‑157(B)(1) primarily through federal litigation and administrative guidance; and
  • Shape the contours of when and how federal courts seek guidance from the Oklahoma Supreme Court through certified questions.

In sum, the case stands for two main principles:

  1. Substantive: HB 1775’s prohibition on “orientations or requirements” that “present[] any form of race or sex stereotyping or a bias on the basis of race or sex” in higher education is limited to non‑curricular orientation‑type obligations, not academic courses or research.
  2. Procedural/federalism‑based: The Oklahoma Supreme Court will exercise restraint in answering certified questions, particularly where those questions are closely bound up with federal constitutional issues and where federal courts can resolve the interpretive questions using ordinary tools of statutory construction.

Both principles will likely influence litigation and legislation at the intersection of education, speech, and equality in Oklahoma for years to come.

Case Details

Year: 2025
Court: Supreme Court of Oklahoma

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